Gujarat High Court
Piyushbhai Jayantilal Gandhi vs Special Secretary (Appeals) on 6 February, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/965/2022 JUDGMENT DATED: 06/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 965 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 1283 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may
be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of
India or any order made thereunder ?
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PIYUSHBHAI JAYANTILAL GANDHI
Versus
SPECIAL SECRETARY (APPEALS)
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Appearance:
MR M S SHAH SENIOR ADVOCATE with MR A R KADRI(7330)
for the Petitioner(s) No. 1
MR NIYANT R BHIMANI(8000) for the Respondent(s) No.
5,6,7,8
MR JAYNEEL PARIKH ASSISTANT GOVERNMENT PLEADER for
the Respondent (s) No. 1, 2, 3, 4
NOTICE SERVED for the Respondent(s) No. 9
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 06/02/2024
ORAL JUDGMENT
1. Heard learned Senior advocate Mr. M.S. Shah with
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learned advocate Mr. A. R. Kadri appearing for
the petitioner, learned Assistant Government
Pleader Mr. Jayneel Parikh appearing for the
respondents No.1, 2, 3 and 4, learned advocate
Mr. Niyant R. Bhimani appearing for the
respondents No.5, 6, 7, 8. Despite service of
notice, none appears for the respondent No.9.
2. Though there are two separate petitions
preferred by the same petitioner, learned senior
advocate Mr. M. S. Shah submitted that by way of
a Will, different parcels of land were given to
the petitioner, for which different entries were
mutated and therefore, the revenue proceedings
commenced separately in respect of two different
entries and therefore, there are two petitions
and hence, except for the two different revenue
entries as the facts are by and large the same
both the matters may be taken up together.
Learned advocate Mr. Niyant Bhimani did not
dispute the aforesaid submissions and hence,
both the matters were taken up together and now
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being decided today.
3. Since the matter is being heard finally with the
consent of learned advocates appearing for the
respective parties, issue RULE. Learned
Assistant Government Pleader Mr. Jayneel Parikh
waives service of rule on behalf of the
respondents No.1, 2, 3, 4 and learned advocate
Mr. Niyant R. Bhimani waives service of rule on
behalf of respondents No.5, 6, 7, 8. According
to learned senior advocate Mr. M. S. Shah,
respondent No.9 has never challenged the Will
executed in favour of the petitioner and nor she
objected to the concerned mutation entry which
is a subject matter of dispute between the
parties and also considering the fact that
despite the notice was served upon respondent
No.9, she had not chosen to appear before this
Court, the matter is heard in absence of
respondent No.9.
4. Brief facts of the petition as stated by learned
senior advocate Mr. M. S. Shah assisted by
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learned advocate Mr. Kadri are stated as
under :-
5. For the convenience as the dispute is in respect
of mutation entry mutated on the basis of Will,
the fact of Special Civil Application No.965 of
of 2022 is stated. The only difference in
respect of fact in both the petition is that in
Special Civil Application No.1283 of 2022 before
Entry No.1664 there was entry being Entry
No.1663 mutated on the basis of succession
whereas in Special Civil Application No.965 of
2022 straightway Entry No.1896 was mutated on
the basis of Will.
6. With the aforesaid difference between the facts
of the two petitions, the facts of Special Civil
Application No.965 of 2022 are as under :-
6.1 The issue pertains to a land bearing
Old Survey No.94/2 (New Block/Survey No.362),
Old Survey No.94/4 (New Block/Survey No.364),
Old Survey No.95/1/E (New Survey No.367) known
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as Khandhiwadu Khet situated at Village Sarnej,
Taluka - Vaghodiya, District - Vadodara, the
aforesaid land was purchased by father of the
petitioner namely Jayantilal Gandhi and two
uncle of the petitioner namely Ochavlal Gandhi
and Narendrabhai Gandhi, by way of a registered
sale deeds. In respect of land bearing Survey
No.94/2 and 95/1/E, mutation Entry No.766 was
mutated whereas for a land bearing Survey
No.94/4, revenue Entry No.767 was mutated and
both the entries were certified on different
dates in the year 1977.
6.2 The petitioner's uncle namely
Narendrakumar Chaganlal Gandhi died on 17.9.1997
and said Narendrakumar Gandhi married twice but
both the wives died in the year 1991 and 1997
respectively. Late Narendrakumar Chaganlal
Gandhi was not survived by any other legal
heirs.
6.3 Another uncle of the petitioner namely
Ochavlal Chaganlal Gandhi was also died on
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6.4.1979, leaving behind the only legal heir
namely his wife Chandanben Ochavbhai Gandhi and
the said Chandanben inherited his entire share
from the aforesaid property in favour of the
petitioner and therefore, the petitioner became
the owner of the share of the land of Ochavlal
Gandhi by way of a Will.
6.4 Petitioner's father Jayantilal Gandhi
executed a Will affirmed before the Executive
Magistrate qua his share in the property in
favour of the present petitioner in presence of
the witnesses and the said Will was executed on
9.4.1998 and the father of the petitioner
Jayantilal Gandhi passed away on 15.12.2002.
6.5 Chandanben Ochavlal Gandhi also
executed a Registered Will before the Sub-
Registrar on 11.10.2006 and she expired on
26.7.2012.
6.6 The aforesaid facts would indicate that
though three brothers namely Jayantilal,
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Ochavlal and Narendrakumar Gandhi purchased the
land in question jointly, on account of the fact
that Chandanben and Jayantilal Gandhi, gave away
their share of the land, by way of Registered
Will in favour of the petitioner, the petitioner
became owner of the land in question.
6.7 At this stage, it is clarified by
learned senior advocate Mr. M. S. Shah that as
one of the joint owner of the property
Narendrakumar died in the year 1997 and he was
not having any issue, his share had gone to his
two brothers / legal heirs of brother and
therefore, the entire property remained with
Jayantilal and Chandanben, who interned
entrusted their properties in favour of the
petitioner by way of two registered Wills and
therefore, upon death of Chandanben in the year
2012, the petitioner became sole owner of the
property in question.
6.8 Thereafter, the petitioner preferred an
application on 12.2.2016 for mutating his name
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in the revenue record and for deletion of name
of Narendrakumar Gandhi from the revenue record,
the same was done and Entry No.1896 was mutated
in the revenue record on 12.2.2016 and the same
was certified on 3.5.2016 by respondent No.4.
6.9 In respect of other survey number of
land Entry No.1664 was mutated in favour of the
petitioner and therefore, being aggrieved and
dissatisfied with the order whereby Entry
No.1896 and Entry No.1664 were mutated in favour
of the petitioner, two separate proceedings
challenging those entries were preferred by the
respondents No.4 to 8 before the Revenue
Authorities. In respect of Entry No.1896, the
respondents No.5 to 8 preferred
RTS/Dispute/348/2016 before the Deputy
Collector, Dabhoi, District - Vadodara and
respondent No.3 - Deputy Collector, Dabhoi,
District - Vadodara allowed the appeal preferred
by the respondents No.5 to 8 vide order dated
7.8.2018 and quashed the Entry No.1896.
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6.10 The petitioner challenged the aforesaid
order by preferring a revision before the
respondent No.2 - Collector, Vadodara by way of
RTS/RA/343/2018 and the Collector Vadodara vide
his order dated 5.9.2019 confirmed the order
passed by the Deputy Collector, Vadodara and
rejected the revision application of the
petitioner.
7. Being aggrieved by the aforesaid, the petitioner
challenged the order passed by the Deputy
Collector, Dabhoi and Collector, Vadodara by way
of a revision application before the Special
Secretary (Appeals) Revenue Department by way of
revision application being MVV/HKP/VAD/174/2019
and vide order dated 1.12.2021, the Special
Secretary (Appeals) confirmed the order passed
by the respondents No.2 and 3 by rejecting the
revision application of the petitioner. However
as in the meantime, Will itself was challenged
by the respondents No.5 to 8 by way of Regular
Civil Suit No.399/2018 which was pending at the
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relevant point of time before the Court of
learned Senior Civil Judge at Vadodara. The
Special Secretary Vadodara observed that
certification of entry shall be subject to final
outcome of Regular Civil Suit No.399/2018.
7.1 In respect of another revenue entry
that is Entry No.1664, the said entry was
challenged by the respondents no.5 to 8 before
the Deputy Collector wherein they succeeded and
Entry No. 1664 was quashed and against which the
petitioner preferred appeal and revision before
the Collector, Vadodara and Special Secretary
(Appeals) respectively, where the petitioner
failed and similar observations were made by the
Special Secretary and that is how the petitioner
has preferred two petitions and challenged two
different orders dated 1.12.2021 passed in
Revision Application No.MVV/HKP/VAD/174/2019 and
Revision Application No. MVV/HKP/VAD/43/2020.
8. With the aforesaid factual background, learned
senior advocate Mr. M.S. Shah submitted that in
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the meantime, the challenge to the Will itself
made by respondents No.5 to 8 in Regular Civil
Suit No.399 of 2018 was decided by the learned
18th Additional Senior Civil Judge, Vadodara
vide order dated 30.9.2023 whereby the learned
judge was pleased to reject the suit preferred
by the respondents No.5 to 8 and though against
which an appeal is preferred by respondent Nos.5
to 8, no stay is granted in the aforesaid
appeal. Learned senior advocate Mr. Shah drew
attention of this Court from the aforesaid
judgment, copy of which is placed on record,
from the issues framed in the aforesaid suit and
pointed out that the aforesaid suit was
preferred and two separate Wills in favour of
the petitioner executed by his father Jayantilal
Chaganlal Gandhi dated 6.4.1998 as well as his
paternal aunty Chandanlal Ochavlal Gandhi dated
6.10.2006 were challenged on the ground that
those Wills were bogus, fraudulent and concocted
one. However, the aforesaid contention was not
believed by the Trial Court and therefore, the
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suit was dismissed.
9. Learned senior advocate therefore submitted that
in view of dismissal of suit and thereby,
essentially to the challenge to the Will, even
the revenue Entries No.1664 and 1896 which are
also challenged on the ground that the Will is
questionable as no probate is obtained in
respect of the aforesaid Will and therefore, the
entry certified on the basis of aforesaid Will
is required to be quashed, that finding is
required to be quashed and original Entry
No.1664 and 1896 are required to be restored
subject to final outcome of appeal against the
judgment dated 30.9.2023 in Regular Civil Suit
No.399/2018 passed by the learned 18th
Additional Senior Civil Judge, Vadodara.
10. The aforesaid submission though was
vehemently opposed by learned advocate Mr.
Niyant Bhimani, learned advocate Mr. Bhimani
also could not dispute the fact that the
respondents No.5 to 8 have lost in civil
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proceedings as Regular Civil Suit No.399/2018 is
dismissed. He also could not dispute the fact
that while rejecting the revision application
preferred by the petitioner Special Secretary
(Appeal) Revenue Department specifically
observed that the final outcome of pending
Regular Civil Suit No.399/2018 shall be binding
to the parties.
11. In view of above he could not dispute the
aforesaid factual aspect and submitted that
though this Court may pass appropriate order
considering the merit of the matter, this Court
may observed that any entry which may be
restored shall be subject to final outcome of
pending appeal preferred by the respondents No.5
to 8.
12. Learned Assistant Government Pleader Mr.
Jayneel Parikh appearing for the respondents
No.1 to 4 submitted that the dispute being
entirely a private dispute, Government is only a
formal party and therefore, Court may pass
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appropriate order.
13. In view of above submission as well as
considering the material available on record, I
have found that the dispute in respect of Entry
No.1664 and Entry No.1896 are raised by
respondents No.5 to 8 who happens to be the
sisters of the present petitioner. Though
respondents No.5 to 8 have questioned the Will
and have challenged the Will by way of Regular
Civil Suit No.399/2018, the aforesaid suit is
decided against them as the suit is rejected.
Further, it is well settled that once the civil
rights are crystallized, the same should be
given effect to in the revenue record. In the
instant case, so long as the civil suit was
pending even the revenue authorities also while
quashing entry No.1664 and 1896 had observed and
more particularly, Special Secretary (Appeals)
had observed that the decision in Regular Civil
Suit No.399/2018 would bind the parties. Now
since the Regular Civil Suit No.399/2018 is
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decided against the respondents No.5 to 8,
original Entry No.1664 and 1896 are required to
be restored by quashing and setting aside the
orders dated 1.12.2021 passed by the respondent
No.1 in MVV/HKP/VAD/174/2019 and order dated
5.9.2019 passed by the respondent No.2 in
RTS/RA/343/2018, as well as order dated 7.8.2018
passed by the respondent No.3 in
RTS/Dispute/348/2018 in Special Civil
Application No.965 of 2022 and the order dated
1.12.2021 passed by the respondent No.1 in
MVV/HKP/VAD/43/2020 and order dated 19.12.2019
passed by the respondent No.2 in RTS/RA/211/2019
as well as order dated 18.3.2019 passed by the
respondent No.3 in RTS/Appeal/64/2018 in Special
Civil Application No.1283 of 2022.
14. Resultantly, the impugned orders are hereby
quashed and set aside with a clarification that
the original Entry No.1664 and Entry No. 1896
are restored with a clarification that the same
would be subject to final outcome of appeal
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preferred against Regular Civil Suit No.399/2018
which is decided on 30.9.2023 by the respondent
No.5 to 8.
15. With the aforesaid observation, both the
petitions succeeds and are accordingly allowed.
Rule made absolute. No order as to costs.
(NIRZAR S. DESAI,J)
Pallavi
